Court rules San Jose pension ballot wording unlawful

An appellate court agreed with San Jose employees' Tuesday that the city's controversial June pension measure was unlawfully worded to sway voter support.

Employees, who have promised a costly court battle over a measure they argue would illegally violate their retirement rights, claimed victory.

"How much more taxpayer dollars will be wasted defending this flawed ballot measure?" asked Robert Sapien, president of the San Jose Fire Fighters union. "We applaud the court's commitment to fairness and holding the city accountable to follow the law."

But city officials said the ruling by a three-judge panel of the Sixth District Court of Appeal doesn't change the heart of the measure, striking only introductory language, and that it still will go before voters June 5.

"Substantively, I don't think the revised language will make any difference to the voters," said Mayor Chuck Reed, who has championed the measure to ease the growing bite of employee retirement costs on city programs and services. "We're happy to move forward."

Measure B, as it is designated, would reduce pension benefits for new hires and require current workers to pay more toward their retirement unless they switch to a plan with reduced benefits and cost. Retirees could see 3-percent annual cost-of-living increases suspended if the city declares a fiscal emergency.

Santa Clara County Superior Court Judge Kevin McKenney last week ordered only minor revisions in a ruling largely favorable to the city. But the employees appealed, arguing that words such as pension "reform" in the opening language and ballot summary are unlawful advocacy rather than permissible analysis.

The city had sought a quick ruling, noting time is running short for revisions before ballots and voter guides must be printed.

Tuesday's decision by acting Presiding Justice Franklin Elia with justices Nathan Mihara and Wendy Clark Duffy concurring overrules McKenney's decision that the city could use the term pension "reform."

Citing dictionary definitions, the justices -- all Republican appointees -- wrote that "the word 'reform' in both definition and connotation evokes a removal of defects or wrongs."

"By combining this charged word with 'pension' in the title, all in capital letters, the city council has implicitly characterized the existing pension system as defective, wrong, or susceptible to abuse, thereby taking a biased position in the very titling of the measure itself," the justices wrote. The city instead should use "Pension Modification," they added.

The justices also cited what they called a "more extensive flaw" with introductory language in the measure stating that it aims to "protect essential services, including neighborhood police patrols, fire stations, libraries, community centers, streets and parks."

The justices argued those points "properly belong in the ballot arguments in favor of the measure, not in the ballot question, which must be cast in neutral, unbiased language," and said they should be stricken.

"We're pleased that the court of appeals agreed with us that it's unlawful for the city to write a biased and overtly partisan ballot title and question," said Robin B. Johansen, an attorney who represented the employees. "The court ordered that the language of Measure B be changed so that it's lawful and provides the voters with a fair choice."

City Attorney Rick Doyle said "the City Council can live with" those changes.

"The important thing to the council," he said, "is that this measure get to the voters and get on the ballot."